An insider's view of what is really happening in the Harris County Criminal Courts

Friday, December 31, 2010

Double Standards

I love being a member of the Defense Bar.

And I remain eternally appreciative of the help that I have received from other members of the Harris County Defense Bar over the past two years as I began a defense practice.

I've been honored to work alongside some of the best in the criminal defense business.

And I've been a very enthusiastic and dedicated advocate to those clients who have entrusted me with their cases.

Contrary to the belief of some, this wasn't all that big of a transition from my job as a prosecutor, which I held for a little over 9 years.

I never relished in the misery of a defendant that I was prosecuting. I was always keenly aware of the repercussions prosecuting somebody had on collateral matters such as a defendant's family, his job, etc. I've written here before about one of the most memorably heart-breaking moments of my career was when a small child came waddling up to me moments after his father had been sentenced to life in prison as I had requested of the Court.

That's a memory that makes me incredibly sad.

But it doesn't change the fact that the defendant in that particular case deserved a life sentence. He had ordered the death of a 17-year-old kid and that death had occurred. He had ordered two other murders that had not.

I guess I'm rambling, but the point that I am (poorly) trying to make is that prosecutors often do jobs that are heart-breaking and sad, but nonetheless, important. And necessary.

Somewhere along the way, people picked up the erroneous perception that prosecutors, and by extension, police officers do their jobs because they just truly enjoy ruining people's lives. They enjoy the power trip. They enjoy the chaos.

I am sure that there are probably some prosecutors and police officers that fit that description. And maybe I'm naive, but I truly believe they are in the small minority.

I hope they are. The ones that I worked with during my time with Harris County certainly weren't representative of that. At least not to my knowledge.

But for some reason, some of my brethren in the Defense Bar regard prosecutors and police officers as power-mad authoritarians who do their jobs solely for the reason of suppressing the rights of citizens who were simply minding their own business.

Those same defense attorneys, who will gladly stand by any accused murderer, rapist, or pedophile, will vocally celebrate if a police officer or (fingers crossed!) a prosecutor gets arrested for anything. Die-Hard civil libertarians who will (rightfully) proclaim any citizen's Presumption of Innocence, suddenly forget that standard if the person accused is a public servant enforcing the law.

It is a double standard beyond comprehension to me.

If every Defense Attorney ultimately fancies themselves to be a modern-day-Atticus-Finch, why do they forget the principles Finch stood for solely because it is a prosecutor or police officer charged? If they were truly devotees of the principles of Atticus Finch, it would seem to me that the more unpopular a person or more scandalous of a charge they faced, the more they would dig their heels in to stand beside them.

The irony of the situation is stunning, because as members of the Defense Bar celebrate and rebroadcast the arrest of a prosecutor or police officer, they are abandoning the most sacred principles of the Constitution.

First, they are presuming them guilty.

And second, they are relishing in the idea that they should be treated more harshly under the law because they are different.

We've all had friends who have been arrested. Today, I had a friend who was arrested for DWI.

Unlike 99.9% of the population, his DWI arrest made the paper.

Unlike 99.9% of the population, he may lose his job simply because he was arrested.

Unlike 99.9% of the population, morons will have the opportunity to make idiotic comments about him on the news blogs.

Unlike 99.9% of the population, many people will be hoping he is guilty.

Why? Because he just so happened to be a prosecutor at the time of his arrest.

For those who will comment on this blog about me still being a prosecutor at heart, go ahead and knock yourself out.

But, I can do my job as a Defense Attorney every day without having to vilify my opposition, or rejoice in their troubles.

I will look any prosecutor in the eye and tell them that I think they are wrong about my case and I will fight them tooth and nail in a courtroom.

But I will never think that they are bad people deserving of trauma in their lives simply for being prosecutors, because that is nothing short of absurd.

And I would never take pleasure in the troubles.

Just like I would never take pleasure in the troubles of those I prosecuted.

I appreciate your "Atticus Finch" point of view and truly wish it was shared by all prosecutors and police officers who hold lives in their hands every day. I have been reading the Harris county "let the venting begin" forums and find it horrible the attitude that our police/constable/deputies have when referring to people as "crooks"....remember, innocent until proven guilty? That does not seem to be the attitude of these officers and if you are the one innocent out of the thousands who are not, and you find yourself facing accusers in a court room, its pretty damn scary, especially when you are a decent/kind person at heart. I hope your friend gets through this trial in his/her life with the "Atticus Finch" people by their side. Happy New Year!

Murray, I usually completely disagree with many of the (in my opinion) asinine things you say/post.However, I begrudgingly agree with this post.Generalizations of any population are flawed and dangerous.“All of any population is [fill in negative]” is a sentiment completely antithetical to being a defense attorney. (Or at least a "true believer.") Well, it should be. But you know how defense attorneys are--every single one of them will do anything for a dollar.

I wonder how this jives with Warren Diepram blogging the names of those arrested in Montgomery County? He seems to think they're guilty until proven innocent, and is pretty good example of how prosecutors suffer from the same problem you're talking about here.

I don't have to mention my friend's name. It is all over the news. I specifically chose not to name him to make a point.

Rage,

Your point is well taken, and I agree with you whole-heartedly. Warren is a personal friend of mine, but I strongly disagree with the posting of accused people's names. Just as Mark Bennett and I often disagree, it doesn't affect the fact that we are friends.

I have heard your friend argue to juries and judges that its high time we make an example of those who choose to drink and drive. I have also heard he has been harder on defendants who refuse the breath test. When you watch your client harmed by such arguments while you're pleading for treatment instead, it is hard to imagine that your friend should be treated better than the citizens he is fighting to make an example of.

Murray- We can all be petty at times. Part of the human condition. But, as I have said before, if anyone should accord the citizen accused the presumption of innocence, it should be the defense bar. That presumption should apply without regard to the accused's employment.

And for anyone to compare Mark to Hitler is just plain stupid. Mark is a good and honorable defense attorney who has dedicated his life to the defense of liberty. Hitler murdered millions and represents the worst in humanity. Casual and thoughtless usages of Hitler's name, diminish Hitler's unprecedented place in history for atrocities and evil. Such usages insult the memory of Hitler's millions of victims.

"if anyone should accord the citizen accused the presumption of innocence, it should be the defense bar."

Really? What about judges? Jurors? If anything, the defense bar works to make sure that presumption is enforced regardless of guilt or innocence.

And I'm sure Warren is your friend, Murr), but when I read this I was hoping it was him that got arrested. Only because he's a pretty vicious crusader, and the public is no safer because of his BS tactics.

I agree, Mark is many things, but he is not Hitler. Quite frankly, having been on a beach in Mexico for the past week, I wasn't paying all that close of attention to some of the comments until last night.

Murray, I think your loyalty to your friend has clouded your perception. The lawyers standing by an accused murderer, rapist, etc. is doing so as a voice that is supposed to uphold the constitution for that person. Recently, there was a trial of a defendant where the facts were horrendous - he had sexually assaulted a 4 year-old girl. I wanted to see the State win that case because I was free to form my own opinion about what the facts meant to me in terms of guilt/innocence. Why? Because I was not the criminal defense lawyer representing that defendant. In other words, I was free to be a human as opposed to a criminal defense lawyer looking at the situation. As I stated on Mark Bennett's blog, that is not a double standard, but rather a human standard.

I haven't heard a single member of the Defense Bar wish ill to your friend. They may react with sadness or hope that the situation will improve with regards to your friend's circumstances, but no celebration. There is a certain irony, but all this proves is that we are all human and capable of getting caught up in the system. As Mark Bennett expressed, I hope your friend goes to one of the DWI blood gurus and beats the case.

It's easy for the haters to rail against the police and prosecutors because such professions are "The Man" which means they aren't considered worthy of civil rights. It's a sad commentary but looking at the comments on the DWI case in question, all but one from what appears to be a fireman are a "throw him to the wolves". I've seen Mark rant & rave against police officers, both in general and individuals, are though they have a hive mind but frankly, my experience over the decades is markedly different than his. As such, everything he writes has less credibility and that is a shame because there are many times I truly want to believe some aspect of what he comments about.

I was a prosecutor in Harris County for years and I never fist-pumped or yelled out, "Yes!" when the jury came back with a guilty verdict or a defendant was sentenced. Never. It was always a sad event to me that we were even there in the first place.

I have seen numerous defense attorneys chuckle as officers or attorneys were arrested. And I know that if it had been a well-known defense attorney, the HCCLA listserve wouldn't have been buzzing so much over the weekend. I mean, really!

Sometimes trial attorneys look at everything as a win or lose situation. When a cop or prosecutor gets arrested, the defense bar chalks it up as a win. I recall a number of defense attorneys getting arrested over the past years and I don't remember a single prosecutor getting off on any of it.

How about realizing that people, regardless of their job (and maybe especially because of their job if they're in law enforcement), suffer when they have to go through the criminal justice system? How about doing what the Bible says (even if you aren't a Christian because it makes good sense) and not rejoicing in someone else's suffering? Be mournful when others are mourning and be joyful when others rejoice. That's what I tell my kids all the time. How about attorneys who don't act like kids?

I know exactly the type of defense attorney you're talking about. I theorized that they have created a delusion of self importance trying to justify their existence. In short there is a screw loose in the head.

I will admit I first hated defense attorneys with a passion until a couple approached me outside the courtroom and we had a pleasant conversation and I realized they are doing a job as well. Plus I'll never forget some cute defense attorney named Michelle I chatted at a club one night. Now that I'm single where is she????

Yes everyone is innocent until proven guilty in a courtroom. However on the streets when a police officer sees the crime occurring (especially if the officer is assaulted) innocence is a moot point. Also, officers typically deal with the same people over and over and knows better than any lawyer, judge, or Joe Citizen what type of person this is. For example, an officer catches a guy in an apartment complex and finds he has a wad of cash in 10s, 20s, etc. The guy has a history of drug arrests and is unemployed. No courtroom will convict him at that moment for dealing drugs but it's clear where that money came from.

WTF do you care if someone calls Bennett Hitler? He is just as big of an ass clown when he does something like this: http://blog.bennettandbennett.com/2010/11/yodle-because-hytlr-com-was-already-taken.html

It's hilarious that "Hey Bennet me too" Paul Kennedy wants to chime in, as if on cue as well. So cute.

Bennett's a true believer and Kennedy is a wanna be, and neither of them will ever have any respect of any prosecutore whatoseover--nothing to lose any sleep about.

I've read your post, as well as the comments up to this point, and think there are a few issues that have been missed or ignored. Seems that one of the central issues in the post is the implication of hypocrisy on the part of criminal defense attorneys (cdls) if they snicker when a prosecutor in charged, versus the average joe on the street, considering the notion "innocent until proven guilty", and, relatedly, the generalization that all police and prosecutors are power-hungry, testilying scum. But the comparison between the average joe charged with a crime, and a prosecutor is not so easy; they are not really comparable.

A prosecutor has a higher, much higher duty to the judicial system than the average joe. He/she is an officer of the court. He/she has a mandate to ensure "justice is done", and has incredible discretion to achieve that. He/she is virtually immune from prosecution in performance of official duties. As a member of the bar, he/she has formally enshrined ethical obligations that restrict his/her civil liberties compared to the average citizen, as well as an implied if not explicit obligation to avoid even the appearance of impropriety.

"Innocent until proven guilty" IS the absolute principle that applies to everyone charged in our formal system, even if some have difficulty with that concept, and so absolutely applies to a prosecutor that has been charged when appearing in court. But as Jackie Carpenter noted, there can also be a human judgement. "Innocent until proven guilty" sounds so absolute, black and white, cut and dried. But in reality, one becomes guilty in the formal system after a judge or jury finds one so "beyond a reasonable doubt", which really boils down to a matter of probabilities. And while an accused prosecutor is formally innocent until proven guilty, the a priori probabilities are different for a prosecutor versus old joe being charged with a DUI. It seems more unlikely to me that a police officer, whom generally works with prosecutors, is going to cite a prosecutor, and the DA/CA charge a prosecutor, rather than old joe, for reasons such as being power-hungry, wanting to exert authority, etc that they might be able to get "away with" with old joe. A prosecutor/trix wields more power than joe, knows the law, and knows how to apply it.

The "power-hungry, testilying scum" argument works in the opposite direction here: while it may increase one's human, a priori judgement that old joe might not be guilty, the idea that a police officer might be willing to lie or falsely accuse a prosecutor doesn't hold as much water. So when a CDL snickers off the record when a prosecutor is charged, I don't find it as hypocritical as I get from the tone of this post. I find it sad when especially when a prosecutor is charged, given to draconian sentences that apply, and the unconstitutionality of many of the DUI laws and evidence procedures, not to mention the detriment to the respect to the judicial system and loss of livelihood. My take would be many prosecutors may have some serious issues, given the power they have over people's lives, and may have substantial personal guilt or whatever because of past mistakes that might have been made in the course of their job, and so might drink to excess at times - a mitigating factor, not a cause to cheer about. If on a jury, would I prejudge a prosecutor guilty?? Hell no. Reading an article in the newspaper in the living room informally? Perhaps more likely than if old joe had been charged.

Anon. 4:29, you're trying to be too philosophical. If you hang around the courthouse long enough, you'll see (almost) an equal number of judges, defense attorneys, and prosecutors charged with offenses. The level of glee when a prosecutor is charged is higher, in my estimation. And it comes from the defense bar who self-righteously remains nonjudgmental until an ADA or cop is charged with an offense.

Also, while prosecutors do have a lot of power in their official capacity, that hasn't stopped them (in many counties) from being treated the same as anyone else once they've been accused of a crime. When I was in law school (in Texas, but not in Houston), a DA failed to charge his ADA with intox manslaughter when it was warranted. Instead, the ADA was quietly fired and he left town. That ultimately resulted in the DA losing his job in the next election. When I worked for Harris County, I was proud of the fact that every ADA who committed a criminal offense (there were not many, but there were a few) from class C misdemeanors on up was investigated and charged and the case was handled by an independent special prosecutor (usually a respected defense attorney who used to be a prosecutor and remembered how to do the job). That's the way it's being handled in Galveston. Most cops may find themselves in a sticky situation when and ADA is being investigated, but it's not like the cops view ADAs as one of their own. (Speak to any about their intake frustrations and you'll see that's nowhere near the case!) So I disagree with your assertions that prosecutors somehow have an edge on getting charged with crimes or that they can influence the investigation. However, it seems like Pat Lykos is fielding favors for Rachel Palmer's fiance!

I just feel for Jack Roady, who I think highly of. What a rough way to begin office!

Maybe, just maybe, co-workers and friends will now help co-workers and friends who are alcoholics get help. Although after reading these posts, I doubt it. Just a bunch of people taking glee in another's misery or hoping he gets off. Welcome to a lost cause. Most of you are symptomatic of what is wrong with our society.

I am doing research on ethical considerations, standards, rules, or anything else that would contain information pertaining to any restrictions the elected DA can place on ADA running for Judicial Office. Also, if the ADA is running against a sitting judge who is also running for re-election to the position sought by the ADA, anything addressing campaign comments or materials of the ADA in regards to the sitting judge's performance, fitness, or anything negative.

The name of Bridgewater's Bureau is literally a run on sentence. Assuming that such a memo was actually sent out, it is troubling that a person entrusted with such an important title (sic) and assignment (sic) would appear to have such a rudimentary and meager knowledge of the subject matter. These questions have quite simple answers - there is one person on the staff who would readily know the answers - unfortunately, however, apparently not Lykos' assigned guru.Calvin Hartmann

Nobody as of yet has indicated why Blizzard's bond was set at $5000 (hopefully this was a misprint) on a DWI case. Since there has been nothing to indicate in the "rags" that there were any extenuating circumstances other than a simple arrest, it appears that Blizzard definitely got special treatment from law enforcement, since I would assume a first offender DWI bond in Galveston County would be $1000 or $1500. While on the thought, a personal recogizance bond would seem to have been appropriate.

Anon 7:32, I have no doubt that such a memo was sent out. It was sent out because the sitting DA, a former judge, who still uses the judicial title and her pretty boy Bureau Chief, also a former judge who still uses the judicial moniker, have no clue about their current jobs,responsibilities or the law generally. This is not surprising as they had no clue about their previous jobs. Lykos wants to prohibit assistants from running for Judge period. She is doing this under the pretense of being concerned about her assistants running against incumbents.

The answer to "Darkwater's" inquiry is very simple. A Federal Court ruling prohibits Lykos from preventing one of her assistants from running against an incumbent. She cannot do anything that would have a chilling effect on the political activities of those individuals running against incumbents as that would violate the spirit of the Federal ruling. She cannot demote them. She cannot fire them. She cannot give them bad asignments. If she does she will wind up in Federal Court.

The only real restrictions on the candidates are those set forth by the Code of Judicial Conduct, which govern judicial campaigns. These rules apply to candidates as well as sitting judges. It is a pity thay Lykos et al are such poor lawyers that they cannot quickly resolve the issue.

The citizens of Harris County should be very disturbed that the elected DA wishes to interfere in the election process in such a manner. It is yet another example of the administration wanting to control every aspect of each employees lives.

Jackie Carpenter well said, as usual. I get tired of hearing that 1)Defense attorneys take pleasure in seeing a Judge or Prosecutor arrested. The truth is, if the Judge or prosecutor has been fair and mindful that human beings can be, well um human, nobody takes pleasure. If it is a prosecutor who has argued that those who drink and drive need to be made an example of well then everybody, not just defense lawyers would clearly see the hypocrisy in that.

2) That a defense attorney's personal opinion is limited to "well he's innocent until proven guilty" I am a person with personal opinions. I am also a member of the community who does not cheer when somebody dangerous to my family is put on the street. I am also a defense attorney who knows who plays fair down at the courthouse and who does not.

Lastly, I also used to be a prosecutor who gossiped about the troubles of the defense bar just like my colleagues did. I have noticed no difference from one side of the bar to the next.

I always used to carry my driver's license in my ADA ID. Helped a couple of times. But it was a different time back then I guess. And DPS has never been known for giving "professional courtesy". That said, I hope Les keeps his job. We had an ADA arrested for DWI in the mid-80s (he could have gotten a ride home but insisted on being treated like everyone else). He pleaded guilty, received deferred adjudication (it was possible at that time) and Holmes considered the matter closed. He went on to become a District Court chief and a highly successful Assistant US Attorney

I think you have your courts wrong, and are confusing the 176the with the 177th.

From what I have heard, Brad Hart is running for 339th, Joe Vinas is running for 338th, Bridgwater is running for either 337th,or 177th, and Rachel Palmer has her eyes on the 177th.

Murray, not to tell you your business, but perhaps you could do a brief post on who is rumored to be running for what bench? Your blog is the only source of info for most of us who don't tie outselves to internal R or D party politics. Just a thought . . .

I certainly hope that Palmer does not make a run for the 177th. I hear she is gathering support and $ pledges already with Hooper fronting the show. By the way, you gotta give ol' Hooper some credit for fighting the city on the proposition front. Anyway, Fine is not the kind of judge Harris Co. needs, but Palmer would be as bad, just in a different way.

Brad Hart wouldnt be a bad choice for 339th, according to a lot of people who are "in the know" down here at the office. He has been around a while and is qualified, at least (and wont need to relay on "grandma" to get the party's support).

Bridgewater is gunning for 337th, I hear and he has Lykos' nod to do so. Hence the memo he put out regarding not finding a reason why a DA can not run against a sitting judge. HEY ROGER, It just makes sense and removes any hint of bad blood... It prevents a lot of problems, something you have not been able to do here under the "Greek Goddess grom Hell"!!

As a 30+ year cop in Houston and Harris County, Murray.. You are right on. I am sick of the way we get killed in the media and not one "fact" of a case is even out. Very not fair... and worse.. our "politically" chosen bosses within the city and the county will NOT stand up for the employee until the investigation is complete. Sometimes, they are the first ones to rush to judgement.

As a 30+ year cop in Houston and Harris County, Murray.. You are right on. I am sick of the way we get killed in the media and not one "fact" of a case is even out. Very not fair... and worse.. our "politically" chosen bosses within the city and the county will NOT stand up for the employee until the investigation is complete. Sometimes, they are the first ones to rush to judgement.

Lester Blizzard prosecuted the case against Jim Howard III in Galveston, Tx. Jim Howard was driving drunk when he ran into the back of a car carrying some teenagers. One of them being my 17 yr old daughter, Samantha Romero and her best friend Raquel. In court Mr. Blizzard flashed pictures of their autopsy. He flash pictures of their dead bodies. He played audio and video of the kids screaming and trapped in the car. He heard testimony from family, friends, and survivors of the crash. Do you not think if anyone should have know first hand the consequences of drinking and driving it would have been him? Yet for some reason you seem to hope he gets a BAC guru and he gets away with it? Why? Because he is your friend? Or because prosecutors can't kill people when they drive drunk? Or because prosecutors should be able to just break the law whenever they feel like it? Please explain to us simple people out here in the world how this works cause I am really not even believing what I am reading on this blog. He got a man 2 life sentences and two 40 yr sentences for killing two teen girls and permanently injuring 2 others while drinking and driving... then he goes out, gets drunk and drives. And you think he should beat the case? Wow!

Unlike 99.9 percent of the population he prosecuted a DWI double fatality case that landed the defendant in prison for the term of 2 life sentences and two 20 yr sentences. Feel free to read what should have been first hand knowledge of the consequences of drunk driving. Consequences that many times innocent people have to suffer as well. His actions were very selfish to say the least.

Tracy, I'm very sorry for the loss of your daughter. I'm also very sorry if you interpreted this post as a wish that Lester not be held responsible for his actions. This post was about the idea that defense attorneys have to represent their clients and adhere to the presumption of innocence on ALL cases. This post was written several years ago and ultimately it was resolved with a conviction. He was held accountable. My only frustration was the glee that some of my brethren in the defense bar had because a prosecutor was charged. To me, it was counter to the principles we were supposed to hold of innocent until proven guilty. Those principles should be something that (at least a defense attorney) should maintain regardless of who was being charged. That was the point that I was trying to make.

About Me

I practice criminal law and criminal law only. I've been involved in the criminal justice system since I was in college, and I've been practicing in Houston for over 18 years.
Most people never have to come down to the Harris County Criminal Justice Center unless they have jury duty. This blog is meant to give the Outsider an inside view.
These are just my opinions. The opinions of the Commenters are also just their opinions and I don't endorse them. But (within reason), I want everybody to be able to have a forum to say what they want to say.